11-05-06: NONCONFORMITIES:

   1.   Legal Nonconforming Uses, Parcels, and Structures: A legal nonconforming use, parcel, structure, sign, or site feature is one that was legally established but that is not in compliance with this Code due to a subsequent ordinance amendment, annexation, change of zoning, eminent domain, or similar action, and not due to the actions of the property owner.

   2.   Determination of Legal Nonconforming Status: An application by a property owner to confirm the legal nonconforming status of a property shall be reviewed pursuant to Section 11-05-05.2.G, Hillside Development Permit - Category 2 Applicability.

      A.   A Hillside Development Permit is required for any development proposal for properties when any topographical slope exceeds 15 percent or where adverse conditions associated with slope stability, expansion soils, high water table and springs, erosion or sedimentation are present as determined by the Planning Director in consultation with the City Engineer.

         (1)   A Category 2 Hillside Development Permit is required for those projects defined in Section 11-02-07.3.G(3)(b).

         ( 2)   Procedure:

            (a )    All applicab le provisions of Sections 11-05-02, Summary Table of Review and Decision-Making Procedures and 11-05-04, Common Procedures for a Type 1 application apply unless specifically modified by the provisions of this Section 11-05-05.1.

            (b)   A Category 2 Hillside Development Permit shall be processed together with the development application to which it relates.

         (3)   Findings for Approval: The Planning Director shall approve the application, or approve it with conditions, if it complies with the following criteria:

            (a)   The proposed development is in compliance with the technical requirements of Section 11-02-07.3.G, HS-O: Hillside Development Overlay including those related to grading, drainage, hazardous areas, revegetation, preservation of outstanding and unique features; and

            (b)   The proposed development, if it complies with all conditions imposed, will not adversely affect other property in the vicinity; and

            (c)   The land itself is capable of the volume and type of development proposed as determined by geological, hydrological and soils engineering analysis; and

            (d)   The project does not create a potential hazard of flooding, soil instability, fire, erosion, etc.

            (e)   The proposal complies with all requirements of the Zoning Ordinance for foothills gulches including the requirements of Section 11-02-07-G and the Floodway and Floodplain Ordinance.

   3.   Legal Nonconforming Parcels: Notwithstanding the minimum requirements for parcel size within the various zoning districts, structures may be built, expanded, reconstructed, occupied, or used on a legal nonconforming parcel that existed prior to the enactment of this Code provided that such structures and uses meet all other applicable requirements of this Code including but not limited to the provisions of Section 11-04-03.4, Residential Small Lots.

   4.   Legal Nonconforming Structures:

      A.   A legal nonconforming structure occupied by a conforming use may be maintained and repaired and may be expanded provided the expansion does not increase the degree of nonconformity. For example, a building that is legally nonconforming due to an inadequate front setback may be extended towards the side or rear provided they do not encroach into required side or rear setbacks, because such expansions do not increase the degree of nonconformity of the front setback.

      B.   A legal nonconforming structure may be expanded, and its degree of nonconformity increased, with the approval of a variance, Section 11-05-05-03.L, Variance. For example, a second story addition onto an existing single story structure that has a legal nonconforming setback encroachment shall require a variance as it is expanding the degree of nonconformity.

      C.   A legal nonconforming structure occupied by a legal nonconforming use may be maintained and repaired but may only be expanded as needed to occupy any expansion of the legal nonconforming use permitted pursuant to Subsection 5 below.

      D.   A legal nonconforming structure shall not be replaced except in compliance with this Code, but may be maintained, repaired, or internally altered provided that there is no increase in the degree of noncompliance with this Code.

      E.   When a structure housing a legal nonconforming use is illegally modified or expanded, the legal nonconforming status of the use shall be lost.

   5.   Legal Nonconforming Uses: A legal nonconforming use of a conforming or legal nonconforming structure or parcel may continue, and may be sold, leased, or otherwise conveyed to a new owner, tenant, or user, without loss of legal nonconforming status, provided the continued use of the property complies with the following provisions:

      A.   The area of the parcel or building occupied by a legal nonconforming use may be expanded as provided in Table 11-05.1: Summary of Review and Decision-Making Procedures.

      B.   An expansion of less than 20 percent beyond the area of the building or parcel occupied by the legal nonconforming use on the Effective Date may be approved pursuant to Section 11-05-05.2.G, Hillside Development Permit - Category 2.

      C.   Applicability.

      D.   A Hillside Development Permit is required for any development proposal for properties when any topographical slope exceeds 15 percent or where adverse conditions associated with slope stability, expansion soils, high water table and springs, erosion or sedimentation are present as determined by the Planning Director in consultation with the City Engineer.

         (1)   A Category 2 Hillside Development Permit is required for those projects defined in Section 11-02-07.3.G(3)(b).

         (2)    Procedure:

            ( a)   All applicable provisions of Sections 11-05-02, Summary Table of Review and Decision-Making Procedures and 11-05-04, Common Procedures for a Type 1 application apply unless specifically modified by the provisions of this Section 11-05-05.1.

            (b)   A Category 2 Hillside Development Permit shall be processed together with the development application to which it relates.

         (3)   Findings for Approval: The Planning Director shall approve the application, or approve it with conditions, if it complies with the following criteria:

            (a)   The proposed development is in compliance with the technical requirements of Section 11-02-07.3.G, HS-O: Hillside Development Overlay including those related to grading, drainage, hazardous areas, revegetation, preservation of outstanding and unique features; and

            (b)   The proposed development, if it complies with all conditions imposed, will not adversely affect other property in the vicinity; and

            (c)   The land itself is capable of the volume and type of development proposed as determined by geological, hydrological and soils engineering analysis; and

            (d)   The project does not create a potential hazard of flooding, soil instability, fire, erosion, etc.

            (e)   The proposal complies with all requirements of the Zoning Ordinance for foothills gulches including the requirements of Section 11-02-07-G and the Floodway and Floodplain Ordinance.

      E.   Legal Nonconformity - Confirmation, Change, or Minor Expansion.

      F.   An expansion of 20 percent or more beyond the area of the building or parcel occupied by the legal nonconforming use on the Effective Date may be approved pursuant to Section 11-05-05.3.G, Legal Nonconformity - Major Expansion.

      G.   Legal nonconforming uses may be converted to another legal nonconforming use pursuant to Section 11-05-05.2.G, Hillside Development Permit - Category 2.

      H.   Applicability.

      I.   A Hillside Development Permit is required for any development proposal for properties when any topographical slope exceeds 15 percent or where adverse conditions associated with slope stability, expansion soils, high water table and springs, erosion or sedimentation are present as determined by the Planning Director in consultation with the City Engineer.

         (1)   A Category 2 Hillside Development Permit is required for those projects defined in Section 11-02-07.3.G(3)(b).

         (2)    Procedure:

            (a)    All applicable provisions of Sections 11-05-02, Summary Table of Review and Decision-Making Procedures and 11-05-04, Common Procedures for a Type 1 application apply unless specifically modified by the provisions of this Section 11-05-05.1.

            (b)   A Category 2 Hillside Development Permit shall be processed together with the development application to which it relates.

         (3)   Findings for Approval: The Planning Director shall approve the application, or approve it with conditions, if it complies with the following criteria:

            (a)   The proposed development is in compliance with the technical requirements of Section 11-02-07.3.G, HS-O: Hillside Development Overlay including those related to grading, drainage, hazardous areas, revegetation, preservation of outstanding and unique features; and

            (b)   The proposed development, if it complies with all conditions imposed, will not adversely affect other property in the vicinity; and

            (c)   The land itself is capable of the volume and type of development proposed as determined by geological, hydrological and soils engineering analysis; and

            (d)   The project does not create a potential hazard of flooding, soil instability, fire, erosion, etc.

            (e)   The proposal complies with all requirements of the Zoning Ordinance for foothills gulches including the requirements of Section 11-02-07-G and the Floodway and Floodplain Ordinance.

      J.   Legal Nonconformity - Confirmation, Change, or Minor Expansion.

      K.   If a legal nonconforming use is expanded in violation of this Code, the legal nonconforming status shall be lost.

      L.   These regulations shall not be used to deprive the use of improvements on private property based solely on nonuse of the improvements for their designed purposes for a period of 10 years or less.

   6.   Legal Nonconforming Signs: Any non-temporary sign legally existing on the Effective Date that does not conform in use, location, height, or size to the requirements of this Code shall be considered a legal nonconforming sign. A legal nonconforming sign may remain in use subject to the following provisions:

      A.   Legal nonconforming signs may be maintained and repaired and copy changes and sign face changes that use similar materials are permitted.

      B.   Legal nonconforming signs shall not be structurally altered, moved, or replaced without being brought into conformance with the provisions of this Code.

      C.   If the sign is abandoned, the sign shall lose its legal nonconforming status and shall be removed or brought into compliance with this Code.

      D.   Any use or modification of the sign in violation of Subsections B or C above shall result in the sign losing its legal nonconforming status.

   7.   Legal Nonconforming Site Features: Nonconforming site features include any aspect of a property other than its use, structures, or signs, including but not limited to amounts, types, and locations of parking, landscaping, buffering, or lighting, that were legally created but that no longer comply with this Code. Legal nonconforming site features may continue in use subject to the following provisions:

      A.   The site features may remain in use until one of the primary structures on the site is redeveloped or replaced.

      B.   If one or more of the primary structures on the site is expanded by more than 50 percent, and the expansion disturbs any of the legal nonconforming site features, the Planning Director may require that the legal nonconforming site feature be brought into compliance with this Code to the maximum extent practicable.

   8.   Discontinuance of Use, Building, or Sign: Except as stated in Subsection B below, a nonconforming use, building, or sign that is discontinued for a period of one year shall be deemed to have been purposely discontinued, and the parcel and use, building, or sign shall thereafter be required to comply with all applicable provisions of this Code.

   9.   Destruction by Calamity:

      A.   Except as stated in Subsections B or C below, the legal nonconforming status of a structure, use, sign, or lot feature shall be lost when it is destroyed by fire or other calamity to the extent that the cost of restoration is 50 percent or more of the assessed value.

      B.   Upon application by the property owner, the PZC shall approve, approve with conditions, or deny a Conditional Use Permit pursuant to Section 11-05-05.3.A allowing the reconstruction or reestablishment of the structure, use, sign, or site feature. Any approval by the PZC may include conditions designed to bring the property closer to conformity to this Code or to mitigate any negative impacts on the surrounding neighborhood caused by the reconstruction or reestablishment of the nonconformity.

      C.   Detached Single-Family Dwellings permitted before the Effective Date of this ordinance shall be eligible to rebuild when destroyed by fire or other calamity. (Ord. 27-23, 7-18-2023, eff. 12-1-2023; amd. Ord. 25-25, 6-24-2025)